[Congressional Record Volume 144, Number 61 (Thursday, May 14, 1998)]
[Senate]
[Pages S4915-S4916]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. HUTCHINSON:
  S. 2085. A bill to assist small businesses and labor organizations in 
defending themselves against Government bureaucracy; to protect the 
right of employers to have a hearing to present their cases in certain 
representation cases; and to prevent the use of the National Labor 
Relations Act for the purpose of disrupting or inflicting economic harm 
on employers; to the Committee on Labor and Human Resources.


       the fairness for small business and employees act of 1998

  Mr. HUTCHINSON. Mr. President, I am pleased to introduce today an 
important piece of legislation which would restore fairness to small 
businesses and their employees in the nation's labor laws, and ensure 
freedom of choice in the marketplace. ``The Fairness for Small Business 
and Employees Act of 1998'' will achieve these goals, and improve 
fairness in the National Labor Relations Board (NLRB) process.
  Small businesses are facing a serious and devastating problem. They 
are the targets of unethical attempts to manipulate the law in order to 
injure or destroy the competition. We cannot allow any group with an 
ulterior and destructive motive to use coercive governmental power just 
to harass small businesses and their workers.
  Frivolus charges cost companies significant time, money, and 
resources to defend themselves against complaints that have no merit. 
Small businesses, in particular, need these resources to secure more 
work opportunities, invest in better equipment, and create more jobs.
  The bill I am introducing today consists of three separate small 
business bills, which I have previously introduced in the Senate: ``The 
Truth in Employment Act,'' ``The Fair Hearing Act,'' and ``The Fair 
Access to Indemnity and Reimbursement Act (FAIR) Act.''
  The first provision, ``The Truth in Employment Act,'' remedies the 
unscrupulous practice of ``salting'' by amending the National Labor 
Relations Act (NLRA) to make clear that an employer is not required to 
hire any person who seeks a job in order to promote interests unrelated 
to those of the employer. I would point out that the language in no way 
infringes upon any rights or protections otherwise accorded employees 
under the NLRA, including the right to organize. This provision would 
merely alleviate the legal pressures imposed upon employers to hire 
individuals whose overriding purpose for seeking the job is to disrupt 
the employer's workplace, or otherwise inflict economic harm designed 
to put the employer out of business.
  The second section, ``The Fair Hearing Act,'' would create a 
statutory right to a hearing for the employer when there is a dispute 
regarding the proper bargaining unit of a company with multiple 
locations. While the NLRB proposal has been ``tabled'' for now, there 
is still nothing in the law to assure fairness for employees.
  The last provision, ``The Fair Access to Indemnity and Reimbursement 
Act (FAIR) Act,'' would amend the NLRA to provide that a small business 
or labor organization which prevails in an action against the NLRB will 
automatically be allowed to recoup the attorneys' fees and expenses it 
spends defending itself. Small employers often cannot afford the 
qualified legal representation necessary to defend themselves against 
NLRB charges.
  Mr. President, it is time to stop the devastating impact of unfair 
labor law enforcement on small businesses and their employees. Small 
businesses are truly the backbone of our nation's economy. We must 
curtail the anti-competitive attacks, and instead help these companies 
devote time, money, and resources toward productivity, growth, and 
providing new jobs.
  I would urge my fellow Senators to join me in cosponsoring this 
legislation, and work to pass ``The Fairness for Small Business and 
Employees Act of 1998.'' The survival of America's small businesses 
demand that we act.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 2085

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Fairness for Small Business 
     and Employees Act of 1998''.
                      TITLE I--TRUTH IN EMPLOYMENT

     SEC. 101. FINDINGS.

       Congress makes the following findings:
       (1) An atmosphere of trust and civility in labor-management 
     relationships is essential to a productive workplace and a 
     healthy economy.
       (2) The tactic of using professional union organizers and 
     agents to infiltrate a targeted employer's workplace, a 
     practice commonly referred to as ``salting'' has evolved into 
     an aggressive form of harassment not contemplated when the 
     National Labor Relations Act was enacted and threatens the 
     balance of rights which is fundamental to our system of 
     collective bargaining.
       (3) Increasingly, union organizers are seeking employment 
     with nonunion employers not because of a desire to work for 
     such employers but primarily to organize the employees of 
     such employers or to inflict economic harm specifically 
     designed to put nonunion competitors out of business, or to 
     do both.
       (4) While no employer may discriminate against employees 
     based upon the views of employees concerning collective 
     bargaining, an employer should have the right to expect job 
     applicants to be primarily interested in utilizing the skills 
     of the applicants to further the goals of the business of the 
     employer.

     SEC. 102. PURPOSES.

       The purposes of this title are--
       (1) to preserve the balance of rights between employers, 
     employees, and labor organizations which is fundamental to 
     our system of collective bargaining;
       (2) to preserve the rights of workers to organize, or 
     otherwise engage in concerted activities protected under the 
     National Labor Relations Act; and

[[Page S4916]]

       (3) to alleviate pressure on employers to hire individuals 
     who seek or gain employment in order to disrupt the workplace 
     of the employer or otherwise inflict economic harm designed 
     to put the employer out of business.

     SEC. 103. PROTECTION OF EMPLOYER RIGHTS.

       Section 8(a) of the National Labor Relations Act (29 U.S.C. 
     158(a)) is amended by adding after paragraph (5) the 
     following flush sentence:

     ``Nothing in this subsection shall be construed as requiring 
     an employer to employ any person who is not a bona fide 
     employee applicant, in that such person seeks or has sought 
     employment with the employer with the primary purpose of 
     furthering another employment or agency status: Provided, 
     That this sentence shall not affect the rights and 
     responsibilities under this Act of any employee who is or was 
     a bona fide employee applicant, including the right to self-
     organization, to form, join, or assist labor organizations, 
     to bargain collectively through representatives of their own 
     choosing, and to engage in other concerted activities for the 
     purpose of collective bargaining or other mutual aid or 
     protection.''.
                         TITLE II--FAIR HEARING

     SEC. 201. FINDINGS.

       Congress makes the following findings:
       (1) Bargaining unit determinations by their nature require 
     the type of fact-specific analysis that only case-by-case 
     adjudication allows.
       (2) The National Labor Relations Board has for decades held 
     hearings to determine the appropriateness of certifying a 
     single location bargaining unit.
       (3) The imprecision of a blanket rule limiting the factors 
     considered material to determining the appropriateness of a 
     single location bargaining unit detracts from the National 
     Labor Relations Act's goal of promoting stability in labor 
     relations.

     SEC. 202. PURPOSE.

       The purpose of this title is to ensure that the National 
     Labor Relations Board conducts a hearing process and specific 
     analysis of whether or not a single location bargaining unit 
     is appropriate, given all of the relevant facts and 
     circumstances of a particular case.

     SEC. 203. REPRESENTATIVES AND ELECTIONS.

       Section 9(c) of the National Labor Relations Act (29 U.S.C. 
     159(c)) is amended by adding at the end the following:
       ``(6) If a petition for an election requests the Board to 
     certify a unit which includes the employees employed at one 
     or more facilities of a multi-facility employer, and in the 
     absence of an agreement by the parties (stipulation for 
     certification upon consent election or agreement for consent 
     election) regarding the appropriateness of the bargaining 
     unit at issue for purposes of subsection (b), the Board shall 
     provide for a hearing upon due notice to determine the 
     appropriateness of the bargaining unit. In making its 
     determination, the Board shall consider functional 
     integration, centralized control, common skills, functions 
     and working conditions, permanent and temporary employee 
     interchange, geographical separation, local autonomy, the 
     number of employees, bargaining history, and such other 
     factors as the Board considers appropriate.''.
                       TITLE III--ATTORNEYS FEES

     SEC. 301. FINDINGS AND PURPOSE.

       (a) Findings.--Congress makes the following findings:
       (1) Certain small businesses and labor organizations are at 
     a great disadvantage in terms of expertise and resources when 
     facing actions brought by the National Labor Relations Board.
       (2) The attempt to ``level the playing field'' for small 
     businesses and labor organizations by means of the Equal 
     Access to Justice Act has proven ineffective and has been 
     underutilized by these small entities in their actions before 
     the National Labor Relations Board.
       (3) The greater expertise and resources of the National 
     Labor Relations Board as compared with those of small 
     businesses and labor organizations necessitate a standard 
     that awards fees and costs to certain small entities when 
     they prevail against the National Labor Relations Board.
       (b) Purpose.--It is the purpose of this title--
       (1) to ensure that certain small businesses and labor 
     organizations will not be deterred from seeking review of, or 
     defending against, actions brought against them by the 
     National Labor Relations Board because of the expense 
     involved in securing vindication of their rights;
       (2) to reduce the disparity in resources and expertise 
     between certain small businesses and labor organizations and 
     the National Labor Relations Board; and
       (3) to make the National Labor Relations Board more 
     accountable for its enforcement actions against certain small 
     businesses and labor organizations by awarding fees and costs 
     to these entities when they prevail against the National 
     Labor Relations Board.

     SEC. 302. AMENDMENT TO NATIONAL LABOR RELATIONS ACT.

       The National Labor Relations Act (29 U.S.C. 151 et seq.) is 
     amended by adding at the end the following new section:


                 ``awards of attorneys' fees and costs

       ``Sec. 20. (a) Administrative Proceedings.--An employer 
     who, or a labor organization that--
       ``(1) is the prevailing party in an adversary adjudication 
     conducted by the Board under this or any other Act, and
       ``(2) had not more than 100 employees and a net worth of 
     not more than $1,400,000 at the time the adversary 
     adjudication was initiated,
     shall be awarded fees and other expenses as a prevailing 
     party under section 504 of title 5, United States Code, in 
     accordance with the provisions of that section, but without 
     regard to whether the position of the Board was substantially 
     justified or special circumstances make an award unjust. For 
     purposes of this subsection, the term `adversary 
     adjudication' has the meaning given that term in section 
     504(b)(1)(C) of title 5, United States Code.
       ``(b) Court Proceedings.--An employer who, or a labor 
     organization that--
       ``(1) is the prevailing party in a civil action, including 
     proceedings for judicial review of agency action by the 
     Board, brought by or against the Board, and
       ``(2) had not more than 100 employees and a net worth of 
     not more than $1,400,000 at the time the civil action was 
     filed,

     shall be awarded fees and other expenses as a prevailing 
     party under section 2412(d) of title 28, United States Code, 
     in accordance with the provisions of that section, but 
     without regard to whether the position of the United States 
     was substantially justified or special circumstances make an 
     award unjust. Any appeal of a determination of fees pursuant 
     to subsection (a) or this subsection shall be determined 
     without regard to whether the position of the United States 
     was substantially justified or special circumstances make an 
     award unjust.''.

     SEC. 303. APPLICABILITY.

       (a) Agency Proceedings.--Subsection (a) of section 20 of 
     the National Labor Relations Act (as added by section 302) 
     applies to agency proceedings commenced on or after the date 
     of the enactment of this Act.
       (b) Court Proceedings.--Subsection (b) of section 20 of the 
     National Labor Relations Act (as added by section 302) 
     applies to civil actions commenced on or after the date of 
     the enactment of this Act.

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